Opinion
F073630
01-08-2018
THE PEOPLE, Plaintiff and Respondent, v. AMERICAN CONTRACTORS INDEMNITY COMPANY, Defendant and Appellant.
Law office of John Rorabaugh, John M. Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. James N. Fincher, County Counsel, and Forrest W. Hansen, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CR-00559)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge. Law office of John Rorabaugh, John M. Rorabaugh and Crystal L. Rorabaugh for Defendant and Appellant. James N. Fincher, County Counsel, and Forrest W. Hansen, Assistant County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Detjen, J.
-ooOoo-
American Contractors Indemnity Company (American), as surety on a bail bond that was posted for the release from custody of Carlos Gustavo Teran-Miranda (defendant), appeals from the trial court's order denying its motion to vacate forfeiture of bail and to exonerate the bond. The motion was filed under Penal Code section 980, subdivision (b) (section 980(b)), on the ground that the failure to enter a bench warrant for defendant's arrest into the National Crime Information Center (NCIC) database prevented defendant from being arrested and taken into custody. The trial court denied the motion on the ground that the required factual showing for obtaining relief under section 980(b) had not been made. American appeals from that ruling. We agree with the trial court's conclusion that American failed to show sufficient factual grounds for relief under the statute, and accordingly, we affirm the order of the trial court.
Unless otherwise indicated, all further statutory references are to the Penal Code. --------
FACTS AND PROCEDURAL BACKGROUND
On May 26, 2015, Abba Bail Bonds, Inc., acting as an agent of American, posted bail bond number AUL-2099514, in the sum of $475,000, for the release of defendant from custody. On June 9, 2015, defendant failed to appear in court. A bench warrant was issued and the bail bond was ordered forfeited. The next day, notice of the bail bond forfeiture was mailed to the affected parties, including to American. However, the bench warrant was not entered into the NCIC database.
On October 6, 2015, American filed a motion to vacate forfeiture and exonerate the bail bond based on section 980(b). The motion was supported by a declaration of the bail agent's investigator, Yousuf Nabi, confirming that defendant's bench warrant was not entered into the NCIC system. Further, the motion attached a copy of a citation for jaywalking that was purportedly issued to defendant by a police officer in the City of Long Beach. According to American's motion, the police officer was effectively prevented from arresting defendant on the present case because the bench warrant had not been entered in the NCIC system. Ignorant of the bench warrant, the police officer simply issued the pedestrian citation and allowed defendant to go on his way.
On November 17, 2015, the People (represented by the County Counsel for the County of Merced) filed opposition to the motion. The opposition argued that American had failed to demonstrate that the mere nonexistence of defendant's bench warrant in the NCIC system reasonably precluded or prevented American from carrying out its obligation, as surety, to surrender defendant to custody or secure defendant's arrest. Moreover, since American had failed to show any reasonable effort to do so, the People urged the trial court to deny the motion.
On November 20, 2015, American filed its reply, arguing that the People's opposition viewed section 980(b) too narrowly. The reply stated that section 980(b) "provides relief not only when the surety is prevented from surrendering the defendant but it also requires the court to exonerate the bond if the failure of entering the warrant into NCIC system 'prevented the fugitive from being arrested or taken into custody.' " In a nutshell, American's position was that defendant would have been arrested in Long Beach, when he was ticketed there for jaywalking, if the warrant had been in the system.
On December 7, 2015, the trial court found the People's argument to be more persuasive, and denied American's motion to set aside forfeiture and exonerate the bail bond. American filed a notice of appeal from the trial court's order.
DISCUSSION
I. Standard of Review
Ordinarily, we review an order denying a motion to vacate the forfeiture of a bail bond under an abuse of discretion standard of review. (People v. Bankers Ins. Co. (2010) 181 Cal.App.4th 1, 5.) However, where the facts are not in dispute, or where the issue is one of statutory construction, the de novo standard of review applies. (People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 308, 314; People v. International Fidelity Ins. Co. (2010) 185 Cal.App.4th 1391, 1395.)
Here, since the underlying facts are essentially undisputed, American argues that we should apply de novo review to the trial court's denial of relief under the statute. The People argue the abuse of discretion standard should govern, since it is unnecessary to construe the subject statute. The question of the appropriate standard of review in the present context is a close call. Nevertheless, because the outcome to this appeal would be the same either way, we find it unnecessary to resolve the question of standard of review in this case. (See People v. Financial Casualty & Surety, Inc., supra, 14 Cal.App.5th at p. 314 ["We need not reconcile the differences, since under either the abuse of discretion standard or de novo review, the result here would be the same."].)
II. Bail Forfeiture Statutes and Section 980.
A bail bond " 'is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.' " (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657.) Under the statutory scheme governing bail forfeitures, "[i]f a criminal defendant out on bail fails to appear in court when lawfully required to do so, the trial court must declare the bail forfeited. (§ 1305, subd. (a)(1).)" (People v. Financial Casualty & Surety, Inc., supra, 14 Cal.App.5th at p. 313.) After the clerk mails notice of forfeiture, the surety has 180 days, plus an additional five days for mailing, to bring the criminal defendant into court. This 185-day period, known as the appearance period, may be extended upon a showing of good cause by the surety. (Ibid.) During the appearance period, the surety is entitled to move to have the forfeiture vacated and the bond exonerated on grounds specified in the bail statutes. (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 42.) For example, one such ground is set forth in section 1305, subdivision (c)(3), which "requires the court to vacate forfeiture and exonerate bail '[i]f, outside the county where the case is located, the defendant is surrendered to custody by the bail [agent] or is arrested in the underlying case within the [appearance] period.' [Citation.]" (People v. Financial Casualty & Surety, Inc., supra, 14 Cal.App.5th at p. 313.)
Section 1305 sets forth the main provisions for vacating a forfeiture and exonerating a bail bond. (People v. Accredited Surety & Casualty Co. (2004) 132 Cal.App.4th 1134, 1138-1139.) When such relief is sought, it is the surety's burden " 'to establish by competent evidence that its case falls within the four corners' " of the statutory provision. (Id. at p. 1139, italics omitted.) Section 980(b), the statute under consideration in the present case, provides an additional ground for such relief from forfeiture. It states as follows:
"The clerk shall require the appropriate agency to enter each bench warrant issued on a private surety-bonded felony case into the national warrant system (National Crime Information Center (NCIC)). If the appropriate agency fails to enter the bench warrant into the national warrant system (NCIC), and the court finds that this failure prevented the surety or bond agent from surrendering the fugitive into custody, prevented the fugitive from being arrested or taken into custody, or resulted in the fugitive's subsequent release from custody, the court having jurisdiction over the bail shall, upon petition, set aside the forfeiture of the bond and declare all liability on the bail bond to be exonerated." (§ 980(b).)
The purpose of section 980(b)'s requirement that warrants be entered into the NCIC system was "to increase the likelihood of the return to custody of defendants who have fled the state, to alert law enforcement when approaching a fugitive and to enable private individuals working for bail bond companies to secure the arrest of a fleeing defendant by providing the necessary legal documentation." (People v. American Contractors Indemnity Co. (1999) 76 Cal.App.4th 1408, 1413.) The requirement to enter warrants into the NCIC system took effect in 1998, and the statute was amended the following year to provide a remedy for the failure to do so. (Id. at pp. 1413-1414 [remedial provision took effect January 1, 1999].)
Under the plain terms of section 980(b), a party seeking relief from forfeiture under this section must not only show there was a failure to enter a bench warrant into the NCIC system, but also that the failure prevented the defendant's surrender or arrest. (People v. Bankers Ins. Co. (2011) 199 Cal.App.4th 407, 414.) "Section 980 provides relief from forfeiture only if the court finds that the failure to enter the warrant into NCIC prevented the surety from complying with its obligations. If the Legislature had intended that relief be granted whenever a warrant is not entered into NCIC, it could have easily so provided, and the language requiring a finding of prevention would not have been included. It is clear from the statute that in order to obtain relief from forfeiture the surety must prove that the failure to enter the warrant into the database prevented the defendant's surrender or arrest." (Ibid., italics omitted; see People v. Accredited Surety & Casualty Co., supra, 132 Cal.App.4th at p. 1148 [surety has "burden of proof establishing the factual predicate for relief under section 980, subdivision (b)"].)
In the present appeal, the parties draw our attention to two appellate decisions in particular - namely, People v. American Contractors Indemnity Co., supra, 76 Cal.App.4th 1408, and People v. Bankers Ins. Co., supra, 199 Cal.App.4th 407. We briefly highlight these two cases.
In People v. American Contractors Indemnity Co., supra, 76 Cal.App.4th 1408, a bench warrant relating to the defendant was not entered into the NCIC database. An investigator for the bail agent recognized and detained the defendant, and called the police. When police officers arrived, the investigator explained the situation and provided a copy of the bail bond and the defendant's photograph. The police officers also obtained an additional photograph from the sheriff's department, but were still unable to positively identify the defendant. The police officers ran a warrant check on the defendant, but no outstanding warrants appeared in the system. Since there were no warrants regarding the defendant in the NCIC system, they refused to arrest the defendant and warned the investigator to release him. (Id. at p. 1411.) The Court of Appeal held that, on these facts, relief under section 980(b) was required, explaining that "the surety did everything possible to surrender the defendant into custody, but was prevented from doing so only because there was no warrant in the system." (People v. American Contractors Indemnity Co., supra, at p. 1418.)
In People v. Bankers Ins. Co., supra, 199 Cal.App.4th 407, the defendant failed to appear in court and the resulting bench warrant was not entered in the NCIC system. However, it was undisputed that the defendant was in custody in another county on unrelated charges "from before the forfeiture of bail through the time [the surety's] motion was heard," and the defendant's location was noted in the minutes of the hearing at which bail was ordered forfeited. (Id. at pp. 413-414.) The appellate court held that the surety's motion under section 980(b) must be denied because the surety "offered no evidence showing that the failure to enter the warrant into the NCIC database prevented [the surety] or its agent from surrendering [the defendant] or having him arrested or held." (People v. Bankers Ins. Co., supra, at p. 413.) The court explained: "We agree with [the surety] that it was not obligated to inform the court or the parties of something they already knew, i.e., [the defendant's] whereabouts, and that it had no authority to physically remove [the defendant] from custody and bring him to court. But [the surety] did not provide any evidence that the failure itself to enter the bench warrant into NCIC prevented [the surety] from securing [the defendant's] appearance or arrest within the 185-day timeframe. [¶] Section 980 provides relief from forfeiture only if the court finds that the failure to enter the warrant into NCIC prevented the surety from complying with its obligations." (Id. at p. 414.)
We note that the two cases outlined above are consistent, but are on opposite ends of the spectrum, factually speaking. In the first case, the evidence was clear that the failure to enter the defendant's warrant in the NCIC system actually prevented his arrest by the police or his surrender into custody by the bail agent, and thus relief under section 980(b) was required. In the second case, conversely, there was no evidence or factual basis to show the failure to enter the warrant into the NCIC system was the actual cause or instrumentality that prevented the defendant's arrest or surrender, and thus the motion had to be denied. It is evident the same basic principle underscores both of the above cases - namely, that entitlement to relief under section 980(b) requires an affirmative factual showing that the nonexistence of the warrant in the NCIC database prevented the arrest or surrender of the fugitive into custody.
III. Section 980(b) Motion Properly Denied
In the present case, American argues that because defendant was issued a jaywalking ticket in Long Beach after the bench warrant was issued, the trial court was required to find the failure to enter the bench warrant in the NCIC system prevented defendant's arrest or surrender. We disagree. Even assuming for the sake of argument that American's theory, if supported, could potentially show the prevention element, American did not provide any evidence that police officers regularly conduct an NCIC database search whenever they stop a pedestrian to give them a jaywalking ticket. American simply assumes - without evidence - that an outstanding-warrants search would be conducted in connection with citing a pedestrian for jaywalking, but we find that assumption to be mere speculation. Consequently, American failed to make an adequate showing demonstrating it was entitled to relief under section 980(b). Accordingly, the trial court properly denied the motion.
In light of this gaping failure of proof, it is unnecessary for us to address the People's further contention that the motion was properly denied for the additional reason that American failed to present any evidence that it made reasonable efforts to perform its obligation under the bond of surrendering defendant into custody, but was prevented from carrying out that obligation.
IV. The People's Motion that We Take Evidence and Make Findings on Appeal
The People have filed a motion asking that we admit evidence on appeal and make factual findings pursuant to our discretionary power under Code of Civil Procedure section 909. According to the motion, the People have discovered new evidence of a compelling nature showing defendant was in another country at the time of the purported jaywalking citation and it appears the citation may have been fabricated.
" ' "Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 . . . , the authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, no such findings should be made. [Citation.]" [Citation].' " (Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591, 605, italics omitted.) Even when exceptional circumstances exist, appellate courts still are not to exercise their authority to make factual findings except where to do so will result in the litigation's termination, such as by affirming the judgment. (Tupman v. Haberkern (1929) 208 Cal. 256, 270; Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090.)
We decline to take new evidence or make findings of fact because the proffered evidence does not impact the present appeal. As noted, we are affirming the order of the trial court on the grounds set forth in this opinion. The further evidence and any new findings of fact therefrom would likely be cumulative in nature, in the sense that they would not be necessary to our reaching the correct result. Therefore, the People's motion to take evidence and make findings of fact is denied.
DISPOSITION
The order of the trial court is affirmed. Costs on appeal are awarded to the People.